Hon. Richard S. Hartunian, United States Attorney, Sixtina Fernandez, Esq., Special Assistant United States Attorney Social Security Administration Office of Regional General Counsel, Region II, New York, New York, Attorney for Defendant.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Senior District Judge.

On November 12, 2008, plaintiff filed an application for Supplemental Security Income on behalf of S.Y., her daughter, born June 11, 1999. S.Y., who was born prematurely, has cerebral palsy and asthma. After the initial denial of the claim, plaintiff requested a hearing, which was held on April 27, 2010, before Administrative Law Judge ("ALJ") Richard Zack. Plaintiff and S.Y., who was represented by counsel, both testified at the hearing. After the hearing, the ALJ held the record open for additional medical evidence, which was received and considered. On July 13, 2010, the ALJ issued a decision holding that S.Y. had the severe medical impairments of cerebral palsy and asthma, but that the impairments did not meet or qualify as medically or functionally equivalent to a listed disability. Thus, the ALJ held that S.Y. was not disabled and not eligible for SSI for the period November 12, 2008 through July 13, 2010. On April 27, 2011, the Appeals Council denied the request to review, and the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner").

On October 22, 2010, after the ALJ's decision but prior to the Appeals Council's decision, plaintiff filed a subsequent application for SSI on behalf of S.Y. Thereafter, plaintiff submitted to the Commissioner a report dated July 7, 2011 from University of Rochester Medical Center ("URMC"). On January 5, 2012, the Commissioner denied plaintiff's application to reopen the subject case based on this report, noting that the URMC report "is about a later time" and thus does not affect the decision about whether S.Y. was disabled during the time period covered by the subject application. The Commissioner returned the URMC report to plaintiff to use in support of the October 22, 2010 application. On April 23, 2012, ALJ John P. Ramos issued a favorable decision on the subsequent application, finding S.Y. disabled as of October 22, 2010.

Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the subject determination that S.Y. was not disabled and therefore not eligible for SSI for the period from November 12, 2008 through July 13, 2010. She asks the Court to reverse the Commissioner's decision denying benefits and to remand the matter for payment of benefits, or, in the alternative, to remand the matter to the ALJ for additional proceedings. As set forth below, the Court finds that S.Y. was disabled for purposes of the Social Security Act from November 12, 2008 through July 13, 2010, grants plaintiff's motion for judgment on the pleadings (Dkt. No. 13), denies defendant's motion for judgment on the pleadings (Dkt. No. 14), and remands for calculation of benefits.

APPLICABLE LAW - GENERALLY

Under 42 U.S.C. § 1382c(a)(3)(C)(i), an individual under the age of 18 will be considered disabled "if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." The regulations establish a three-step evaluative process for determining whether a child meets the statutory definition of disability. See 20 C.F.R. § 416.924, "How we determine disability for children." First, a child who is doing substantial gainful activity is not disabled. 20 C.F.R. § 416.924(b). Second, a child who does not have an impairment or combination of impairments that is severe is not disabled. 20 C.F.R. § 416.924(c). Third, where, as here, the child was not doing substantial gainful activity and had one or more severe impairments during the time period in issue, the question is whether the impairment meets or equals a presumptively disabling condition identified in the listing of impairments set forth under 20 C.F.R. Pt. 404, Subpt. P., App. 1 ("listed impairment"). 20 C.F.R. § 416.924(a). If an impairment is found to meet, medically equal, or functionally equal a listed disability, and the twelve-month durational requirement is satisfied, the child will be deemed disabled. 20 C.F.R. § 416.924(a), (d)(1).

Analysis of functionality is informed by consideration of how a child functions in six main areas, or "domains." 20 C.F.R. § 416.926a(b)(1). The domains are described as "broad areas of functioning intended to capture all of what a child can or cannot do." 20 C.F.R. § 416.926a(b)(1). The domains are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1).

A finding of functional equivalence to a listed impairment may be based on a finding of a "marked" limitation in any two of the six domains, or an "extreme" limitation, meaning "more than marked, " in a single domain. 20 C.F.R. § 416.926a(a). A "marked" limitation means an impairment that "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). An extreme limitation is one that interferes "very seriously" with a child's ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3)(i).

The Court "may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence' or if the decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). The Commissioner's findings as to any fact, "if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Shaw, 221 F.3d at 131 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

THE ALJ'S DECISION

Here, it is undisputed that S.Y. was not doing substantial gainful activity, that she had the severe impairments of cerebral palsy and asthma, and that as a result of her cerebral palsy, S.Y. has some degree of hemiplegia, which is defined as "paralysis of one side of the body, " Dorland's Illustrated Medical Dictionary 848 (31st ed. 2007); Stedmans Medical Dictionary (27th ed. 2000), or "paralysis of an upper and lower extremity on one side of the body, " Attorneys Medical Deskbook, § 24:6 (4th Database -). The ALJ found that S.Y. did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments; plaintiff does not challenge this finding. On this appeal, plaintiff challenges the ALJ's determination that S.Y. did not have an impairment or combination of impairments that functionally equaled one or more of the listed impairments. In reaching this determination, the ALJ evaluated the six functional equivalence domains set forth in 20 C.F.R. § 416.926a(b)(1). He concluded as follows:

(1) S.Y. has less than marked limitation in acquiring and using information;

(2) S.Y. has less than marked limitation in attending and completing tasks;

(3) S.Y. has marked limitation in interacting and relating with others;

(4) S.Y. has less than marked limitation in moving about and manipulating objects;

(5) S.Y. has no limitation in caring for herself; and

(6) S.Y. has less than marked limitation in health and physical well-being.

On this appeal, the Commissioner does not challenge ALJ's finding that S.Y. has a marked limitation in the domain of interacting and relating with others. Plaintiff argues that S.Y. has a marked limitation in at least one additional domain, and thus is disabled due to marked limitations in two of the six domains. See 20 C.F.R. § 416.926a(a). Specifically, plaintiff challenges the ALJ's determinations that S.Y. had less than marked limitations in the following domains: (1) acquiring and using information; (2) attending and completing tasks; (3) moving and manipulating objects; and (4) health and well-being.

As set forth below, the Court finds that the record conclusively establishes that S.Y. had a marked limitation in the domain of moving about and manipulating objects. Therefore, she had marked limitations in two domains and was disabled for purposes of the Social Security Act. See 20 C.F.R. § 416.926a(a). Because the strength of the evidence regarding the domain of moving about and manipulating objects is the determinative issue here, the Court limits its decision to this issue.

MOVING ABOUT AND MANIPULATING OBJECTS - REGULATIONS AND ADMINISTRATIVE RECORD

Regarding the domain of moving about and manipulating objects, the ALJ wrote: "The claimant's cerebral palsy with spastic diplegia produces physical effects that cause limitations in moving about and manipulating objects." Without further discussion, he concluded that S.Y. had a less than marked limitation in the domain.

Specifically with respect to evaluating the domain of moving about and manipulating objects, the regulations provide:

School-age children (age 6 to attainment of age 12). As a school-age child, your developing gross motor skills should let you move at an efficient pace about your school, home, and neighborhood. Your increasing strength and coordination should expand your ability to enjoy a variety of physical activities, such as running and jumping, and throwing, kicking, catching and hitting balls in informal play or organized sports. Your developing fine motor skills should enable you to do things like use many kitchen and household tools independently, use scissors, and write.

20 C.F.R. § 416.926a(j)(2)(iv). The regulations include examples as follows:

Examples of limited functioning in moving about and manipulating objects. The following examples describe some limitations we may consider in this domain. Your limitations may be different from the ones listed here. Also, the examples do not necessarily describe a "marked" or "extreme" limitation. Whether an example applies in your case may depend on your age and developmental stage; e.g., an example below may describe a limitation in an older child, but not a limitation in a younger one. As in any case, your limitations must result from your medically determinable impairment(s). However, we will consider all of the relevant information in your case record when we decide whether your medically determinable impairment(s) results in a "marked" or "extreme" limitation in this domain.

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